Academic journal article Journal of Criminal Law and Criminology

26 U.S.C. S. 5861(d) Requires Mens Rea as to the Physical Characteristics of the Weapon

Academic journal article Journal of Criminal Law and Criminology

26 U.S.C. S. 5861(d) Requires Mens Rea as to the Physical Characteristics of the Weapon

Article excerpt


In Staples v. United States,(1) the United States Supreme Court held that 26 U.S.C. [sections] 5861(d)(2) requires mens rea.(3) Specifically, the Court, reversing the Tenth Circuit Court of Appeals, ruled that the Government was required to prove that the petitioner, Harold E. Staples, III, knew the features of his weapon that brought it within the scope of [sections] 5861(d).(4)

This Note argues that the Court reached the wrong conclusion. The petitioner should have been found guilty for violating [sections] 5861(d) because he was "reckless" as to the fact that his weapon was a statutory "firearm." This Note asserts that because the Court did not properly analyze [sections] 5861(d), it failed to decide the proper mens rea that [sections]5861 (d) requires. The Court concluded that [sections] 5861(d) requires only a single mens rea. This Note, however, argues that [sections] 5861(d) actually requires three separate and distinct mens rea; one for each objective element of [sections] 5861(d). This Note also argues that the required mens rea as to the physical characteristics of a weapon that make it a statutory "firearm" is actually lower than the mens rea the Court established. Unlike the "knowing" level of intent the Court required, this Note argues that "reckless" is a sufficient levvl of intent.

Additionally, this Note agrees with the Court's definition of what items should alert a possessor of a weapon to the possibility of strict regulation. However, this Note disagrees with how the Court applied its definition to the facts of this case. The Court reasoned that guns have enjoyed a tradition of legality in this country, and therefore would not alert a possessor to the probability of strict regulation. The gun involved in this case, however, had been visibly altered, and this Note argues that visibly or knowingly altered weapons have not enjoyed a tradition of legality in this country. Finally, this Note agrees with the Court's conclusion that [sections] 5861(d) is not a public welfare offense because it carries too harsh a penalty.


Congress enacted the National Firearms Act (NFA), 26 U.S.C. [sections][sections] 5801-5872, in 1934 in response to an increase in criminal gang activity.(5) With the NFA, Congress sought to curtail this rise in criminal gang activity by depriving gangsters of their most dangerous weapons.(6) However, Congress did not want the NFA to restrict legitimate gun use by hunters, sportsmen, and people who kept a weapon for home protection.(7) Therefore, Congress limited the NFA to only those weapons that gangsters typically used.(8) This category of weapons was defined in the statute as "firearms," and included machine guns and sawed-off shotguns.(9) Congress felt that "there [was] no reason why anyone except a law officer should have a machine gun or a sawed-off shotgun."(10)

The NFA, however, was not an outright ban on statutory "firearms."(11) Rather, the NFA required owners of "firearms" merely to register their weapons with the government.(12) Congress took this narrow approach because it was afraid that the Supreme Court would strike down an outright ban on "firearms" as an unconstitutional, federal invasion into reserved state powers.(13) Consequently, Congress, at the express advice of Attorney General Cummings, modeled the NFA after the Narcotic Drug Act of 1914.(14) The Narcotic Drug Act derived its power from the taxing clause.(15) The Supreme Court had already held that the Narcotic Drug Act was constitutional and did not invade the states' reserved powers.(16) Therefore, by modeling the NFA after the Narcotic Drug Act, Congress hoped that the Court would construe the NFA in a similar manner.(17) In addition to this benefit, Congress hoped that the courts would comparably construe NFA provisions that were similar to Narcotic Drug Act provisions.(18) In particular, the Supreme Court had already held that certain Narcotic Drug Act provisions did not require proof that the defendant knew all of the facts that made his conduct illegal. …

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